Supreme Court on advocates and Consumer Protection Act: A case of judicial indiscipline?

On May 14, 2024, a two-judge bench of the Supreme Court in Bar of Indian Lawyers through its President Jasbir Singh Malik & Ors v. DK Gandhi PS National Institute of Communicable Diseases and Ors held that services rendered by an advocate do not fall within the ambit of the Consumer Protection Act, 2019 (CP Act).

While excluding advocates from the purview of the CP Act is fair and could be justified for a number of reasons, the judgment suffers from some serious procedural lapses.

One of the key conclusions reached by the Court was that the legislature never intended to include professions or services rendered by professionals under the CP Act. However, the Court recognised that this conclusion is in conflict with the 28-year-old judgment of a three-judge bench in Indian Medical Association v. VP Shantha, wherein the court held that medical professionals fall within the ambit of the CP Act.

The Bench of Justices Bela M Trivedi and Pankaj Mithal then referred to Order VI Rule 2 of the Supreme Court Rules, which states that if a bench considers a matter to be dealt with by a larger bench, it shall refer the matter to the Chief Justice, who shall then constitute a bench to hear the matter. The Bench further referred to a portion of the judgment of the Supreme Court in Triveniben v. State of Gujarat, which dealt with the issue of whether a three-judge bench could overrule a decision of a two-judge bench - an issue unrelated to the present case - only to hold that they are of the opinion that Shantha deserves to be revisited and considered by a larger bench.

The Bench then referred ‘the matter’ to the Chief Justice for his consideration. While it is not clear whether ‘the matter’ implies reconsideration of Shantha in toto, or just the issue of professionals falling within the ambit of the CP Act, issues of procedural propriety mainly kick in when the bench:

(1) proceeds with the next issue on an in arguendo premise of ‘even if it is assumed that CP Act applies to professions and the professionals the next issue that falls for our consideration is’; and

(2) towards the end, concludes that the legislature never intended to bring professionals within the scope of the Act (admittedly contrary to Shantha).

This raises the following inter-linked questions: Can a single issue in a case be referred to a larger bench? Can the bench pass a final judgment in a case where one of the issues have been referred to a larger bench? Can the bench adopt an in arguendo approach in writing judgments?

Referring the issue to a larger bench while simultaneously concluding that professionals do not fall within the scope of the CP Act is against the established position of law. The Supreme Court in Sub-Committee of Judicial Accountability v. Union of India and Ors held that even a co-ordinate bench cannot ‘comment upon’ or ‘sit in judgment over’ the judgment rendered in a cause or matter before another co-ordinate bench.

Order VI, Rule 2 of the Supreme Court Rules does not allow for partial referral of a matter to the larger bench. Adopting an in arguendo approach to judgments is dangerous as the courts can then base their judgments on mere legal assumptions. The judgment in Shantha having been delivered by a three-judge bench, the two-judge bench should have either dealt with the case accepting the law laid down in Shantha (or) referred the present case to a larger bench with specific issues for reconsideration. Simultaneously holding that the position of law laid down in a case requires reconsideration, and assuming that the law laid down in that case is correct in order to pass a final judgment is confusing and lacks judicial discipline. Referring just one issue to a larger bench will also cause confusion on whether the final judgment of this case is subject to the judgment of the larger bench on the referred issue.

It is agreed that a hyper-technical approach to procedural correctness may lead to inordinate delays. However, considering that our judicial system is based very strongly on the law of precedents or the doctrine of stare decisis, judicial indiscipline shown in the Bar of Indian Lawyers case, if not rectified, may lead to serious issues in the future.

Haripriya Venkatakrishnan is an Advocate practicing before the Madras High Court and an Associate at Ganesan and Manuraj Legal LLP.